United States District Court, E.D. North Carolina, Northern Division
TERENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 114]. The government has moved to dismiss
the petition, [DE 123], and the matter is ripe for
disposition. For the reasons discussed below, the
government's motion to dismiss is granted and
petitioner's § 2255 motion is dismissed.
March 21, 2013, petitioner pleaded guilty, pursuant to a
written plea agreement, to two counts of armed bank robbery
and aiding and abetting, in violation of 18 U.S.C.
§§ 2113(a), (d) and 2 (Counts One and Three); and
one count of using, carrying, and brandishing a firearm
during and in relation to a crime of violence and aiding and
abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A)
and 2 (Count Two). [DE 68]. On August 22, 2013, petitioner
was sentenced to a total of 194 months' imprisonment with
credit for time served. [DE 109]. Petitioner did not appeal
April 17, 2017, petitioner filed a motion to vacate under 28
U.S.C. § 2255. [DE 114]. Petitioner alleges a
miscalculation of his guidelines range and that his
conviction under 18 U.S.C. § 924(c) was improper in
light of Johnson v. United States, 135 S.Ct. 2551
(2015). [DE 114-1]. The government responded, arguing that
the motion should be dismissed for failure to state a claim
upon which relief can be granted under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. [DE 123].
12(b)(6) motion must be granted if the pleading fails to
allege enough facts to state a claim for relief that is
facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). See also Rule 12, Rules
Governing Section 2255 Proceedings (Rules of Civil Procedure
apply to section 2255 proceedings).
motion to vacate under § 2255 must be filed within one
year of the latest of four triggering events: (1) the date
the judgment of conviction becomes final; (2) the date on
which an impediment to making a motion that is created by the
government is removed; (3) the date the Supreme Court
initially recognizes a right that is made retroactively
applicable to cases on collateral review; or (4) the date on
which new facts are discovered through the exercise of due
diligence to support a claim. 28 U.S.C. §
Johnson v. United States, the Supreme Court
addressed the constitutionality of the residual clause of
ACCA's violent felony definition, which defines a violent
felony to' include one which "otherwise involves
that presents a serious potential risk of physical injury to
another." 135 S.Ct. 2557. The Court held that the
residual clause is unconstitutionally vague and that to
increase a defendant's sentence under that clause denies
the defendant due process of law. Id. at 2557. In
Welch v. United States, the Supreme Court held that
Johnson announced a substantive rule that applies
retroactively on collateral review. 136 S.Ct. 1257 (2016).
judgment became final on August 22, 2013. The Supreme Court
decided Johnson v. United States on June 26, 2015,
and, accordingly, the date by which a petitioner was required
to file a § 2255 motion asserting relief under that
decision was June 26, 2016. Petitioner did not file the
instant § 2255 motion until April 17, 2017, more than
three years after his judgment became final and more than a
year after Johnson was decided. Therefore,
petitioner's motion must be dismissed as untimely.
petitioner's plea agreement waived his right to challenge
the calculation of his guidelines range, [DE 68 at 1], and
his claim that his § 924(c) conviction was improper is
without merit because the underlying conviction is armed bank
robbery which the Fourth Circuit has determined to be a crime
of violence under the § 924(c)(3) force clause. See
United States v. McNeal, 818 F.3d 141, 156 (4th Cir.
2016) (holding that armed bank robbery, and the lesser
included offense of bank robbery, are crimes of violence
under the § 924(c)(3) force clause).
these reasons, petitioner cannot state a claim upon which
relief may be granted and his § 2255 petition is
of the Rules Governing Section 2255 Cases provides that
"the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." A certificate of appealability shall not
issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that an assessment of the
constitutional claims is debatable and any dispositive
procedural ruling dismissing such claims is also debatable.
Miller-El v. Cockrell,537 U.S. 322, 336-38 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee,252 F.3d 676, 683 (4th ...